In recent weeks, U.S. Citizenship and
Immigration Services (USCIS) learned of a new telephone scam targeting USCIS
applicants and petitioners. Scammers are using a technique called “Caller ID
spoofing” to display a misleading or inaccurate phone number in a recipient’s
Caller ID. The scammer poses as a USCIS official and requests personal
information (such as Social Security number, passport number, or A-number),
identifies supposed issues in the recipient’s immigration records, and asks for
payment to correct these records.

If you receive a call like that, USCIS urges
you to say “No, thank you” and hang up immediately.

USCIS never asks for any form of payment or
personal information over the phone. Do not give payment or personal information
over the phone to anyone who claims to be a USCIS official. In general, we
encourage you to protect your personal information and not to provide details
about your immigration application in any public area.

If you have a question about your immigration
record, please call the National Customer Service Center at 1-800-375-5283, or
make an InfoPass appointment by visiting our website at http://infopass.uscis.gov/. -
Public Engagement Division, US
Citizenship and Immigration Services

How the 2013 immigration bill
affects the EB-5 Program

SB 744, the proposed comprehensive immigration
reform bill, which is stalled in the House and very likely dead, makes permanent the Immigrant Investor Pilot Program, also known as the
EB-5 regional center program. It has periodically
been extended
by Congress for periods of years since 1995. Last year Congress extended
the Immigrant Investor Pilot Program until September 30, 2015.

Eliminates per
country quotas for employment-based immigrant visa numbers. This has
significant implications for China,
which is
predicted to reach its quota of employment-based immigrant visas in fiscal year
2014.

Exempts from
the employment based immigrant visa numbers for spouses and children of
principal EB-5 applicants, this means that visa numbers which are currently capped at 10,000
for the EB-5 Program would be allocated solely to principal
investors.

Adds immigrant visas
numbers for the EB-5 program as a whole.

The bill
includes recapture of unused immigration visas from past fiscal years, making
the Immigrant Investor Pilot Program,
also known as
the EB-5 regional center program, permanent (it was originally introduced as a
pilot program in 1992), eliminates per country quotas for visa numbers (the Department of
State predicted that China would reach the quota in 2014),
more immigrant visa
numbers specifically for the EB-5 Program and the exemption of spouses and
children from theemployment-based immigrant visa numbers of principal applicants
(which is capped at 10,000 visas).

These
provisions to make the program a permanent one will have the effect of improving
the U.S. economy by attracting foreign
investors and
creating jobs for U.S. workers. The bill also encourages immigrant entrepreneurs
of high-tech start-ups and small businesses via a new visa platform that emulates similar
programs in other countries. By allocating more visas for foreign
entrepreneurs
and investors, Congress is moving U.S. immigration policy in the right
direction, taking its cue from the Canadian
immigration
system, which reformed its approach to immigration in 2001, giving more
immigrant visa numbers to highly skilled and highly
educated
foreigners.

To read a
summary of the bill's provisions prepared by the American Immigration Lawyers
Association, CLICK
HERE.

New regulation for waivers of
unlawful presence in effect

U.S.
Citizenship and Immigration Services (USCIS) has finalized its regulation
concerning the adjudication of waivers for people who need to go through consular
processing and would be subject to
the unlawful
presence ground of inadmissibility. As of March 4, 2013, the rule, “Provisional
Unlawful Presence Waivers of Inadmissibility for Certain Immediate Relatives”
is in effect, and USCIS will begin
receiving and
adjudicating provisional waiver applications. Applicants will use a new Form
I-601A. The filing fee is $585. The rule
allows certain immediate relatives of U.S. citizens who are in the United States
without lawful status to request waiver of
their unlawful presences and establishes a process in which the USICS will
adjudicate these waivers before the applicants leave the United
States for their immigrant visa interview in
their home
country. Please note that the regulations do not address all the issues that may
arise when waiver filings commence. To qualify for a
provisional unlawful presence waiver, the immediate relative
must: • Be immediate relatives of U.S. citizen
(spouses, parents of adult U.S. citizens at least 21 years of
age, and minor
children); • Be present in the U.S at the time of
filing the waiver application and for biometrics
exam; • Be inadmissible only based on unlawful
presence, and not subject to any other grounds of
inadmissibility
upon departure and at the time of the consular
interview; • Have an approved I-130 or I-360
petition and have paid the immigrant visa processing
fee; • Depart the U.S to obtain an immigrant visa
abroad; and • Prove extreme hardship to a qualifying
U.S. citizen spouse or parent if the waiver is
denied. USCIS Director Alejandro Mayorkas indicated
that USCIS may consider expanding eligibility for the
provisional
waiver after it reviews the impact the program has had on its
operations. Notwithstanding the eligibility criteria
listed in the rule, a provisional unlawful presence waiver will not be
granted
if: • USCIS has “reason to believe” that the alien
may be subject to inadmissibility grounds other than
unlawful
presence: criminal activity, fraud or misrepresentation to entry or attempted
entry, without inspection following a prior period of unlawful presence in the U.S.
in excess of one year; • Applicant is younger than
17; • Applicant does not have a case pending with
DOS based on the approved I-130
immediate relative
petition or has
not paid the immigrant visa processing fee; •
Applicant had been scheduled before January 3, 2013, for a consular interview;
or • Applicant is in removal proceedings, unless
such proceedings have been administratively closed.
A significant number of immediate relatives of U.S. citizens who are present in
the United States, who entered the country without an inspection, unlawfully, are not
eligible to apply for lawful permanent
resident (LPR)
status in the United States. Before this regulation was available, they
had to depart the United States to apply for LPR status and request waivers of
inadmissibility due to their prior unlawful
presence, which
often resulted in a heavy toll of separation from their U.S. citizen relative
and uncertainty in the process. Because of lengthy separation for the uncertain
amount of time in the process, many
immediate
relatives of U.S. citizens have remained in the shadows without applying for LPR
status. If the waiver is granted, the applicants
will be notified that they may proceed with consular
processing. Eligible aliens must still leave the United States and apply for and
receive an immigrant visa abroad before returning to the United States. However, the
length of time that U.S. citizen families are forced to
remain
separated should be deceased considerably. There is
no appeal if the provisional waiver is denied, but an applicant whose
application is denied may re-apply.

Washington, D.C., Feb. 8, 2013 - The
Securities and Exchange Commission (SEC) has announced charges and an asset
freeze against an Illinois man and two companies behind an investment scheme it
alleges defrauded foreign investors seeking profitable returns and a legal path
to U.S. residence through a federal visa program.
The SEC alleges that Anshoo R. Sethi created A Chicago Convention Center (ACCC)
and Intercontinental Regional Center Trust of Chicago (IRCTC) and fraudulently
sold more than $145 million in securities and collected $11 million in
administrative fees from more than 250 investors primarily from China. The SEC
alleges that Sethi and his companies duped investors into believing that by
purchasing interests in ACCC, they would be financing construction of the
World's first "Zero Carbon Emission Zero Platinum LEED certified" hotel and
conference center near Chicago’s O’Hare Airport. The
SEC alleges that foreign investors were misled to believe their investments were
simultaneously enhancing their prospects for U.S. citizenship through the EB-5
Immigrant Investor Pilot Program (aka, the EB-5 Program for regional centers),
which provides foreign investors an avenue to U.S. residency by investing in
domestic projects that will create or preserve a minimum number of 10 jobs per
investor for U.S. workers. The SEC alleges that
Sethi and his companies falsely boasted to investors that they had acquired all
the necessary building permits and that several major hotel chains had signed
onto the project. They also provided falsified documents to U.S.
Citizenship and Immigration Services (USCIS) - the federal agency that
administers the EB-5 program - in an attempt to secure the agency’s preliminary
approval of the project and investors’ provisional visas. Meanwhile, Sethi and
his companies have spent more than 90 percent of the administrative fees
collected from investors despite their promise to return this money to investors
if their visa applications are denied. More than $2.5 million of these funds
were directed to Sethi’s personal bank account in Hong Kong.
Swift coordination between the SEC and USCIS has
brought the scheme to a halt in its application stage at USCIS. The SEC filed
its complaint under seal earlier this week and obtained an emergency court order
to protect the remaining $145 million in investor assets that were at risk of
being similarly misappropriated by Sethi and his
companies. “Sethi orchestrated an elaborate scheme
and exploited these investors’ dream of earning legal U.S. residence along with
a positive return on their investment in a project that was not nearly the done
deal that he portrayed,” said Stephen L. Cohen, Associate Director in the SEC’s
Division of Enforcement. “The good news is that working closely with
USCIS, we intervened early and stopped him from getting very far, and the asset
freeze preserves nearly all of the money invested.”
The EB-5 program enables foreign investors to possibly qualify for a green card
if they invest $1 million (or $500,000 in a “Targeted Employment Area” with a
high unemployment rate) in a project that creates or preserves at least 10 jobs
for U.S. workers, excluding the investor and his or her immediate
family. The SEC alleges that Sethi and his companies
used the lure of a pathway to U.S. citizenship to convince investors to wire a
minimum of $500,000 apiece plus a $41,500 “administrative fee” to U.S. bank
accounts. These administrative fees are separate from the investment capital
that the EB-5 program requires to be deployed into a job-creating enterprise.
More than $11 million in administrative fees were collected with the claim that
they were fully refundable to investors if their visa applications are rejected.
Sethi and his companies have instead been spending those
funds. The SEC alleges that Sethi submitted false
claims about the project to USCIS. Among the phony documentation that he
provided to the agency in seeking preliminary approval for the project under the
EB-5 program were a comfort letter from Hyatt Hotels and a backup financing
letter from the Qatar Investment Authority. The SEC
alleges that Sethi and his companies made a number of misrepresentations about
the project to dupe investors. Offering materials stated that investors’ funds
would help build “a convention center and hotel complex, including convention
and meeting space, five upscale hotels, and amenities including restaurants,
lounges, bars, and entertainment facilities.” Sethi and his companies
prominently featured in their marketing materials the purported participation of
three major hotel chains in the project: Hyatt, Intercontinental Hotel Group,
and Starwood Hotels. However, none of these hotel chains executed franchise
agreements to include a brand hotel in the project as represented to investors
in offering materials. Two of the chains actually terminated prior deals with
other Sethi-related entities more than two years before offering materials were
circulated to investors. The SEC further
alleges that offering materials falsely stated that construction would begin in
summer 2012 and occupancy of the first tower would occur in early spring 2014. A
search of the Chicago building permits database for the project address shows
that the only recent permits are for a tent for a purported groundbreaking
ceremony held in November 2012, a demolition permit, construction of a fence,
and a minor electrical wiring permit. According to
the SEC’s complaint, Sethi, 29, misrepresented to investors in offering
materials that he has “over fifteen years of experience in real estate
development and management, specifically in the lodging area.” Offering
materials also misleadingly state that the project’s developer Upgrowth LLC has
“more than 35 years of experience.” Illinois corporate records show that
Upgrowth was organized in 2010. The SEC alleges that
Sethi, ACCC, and IRCTC violated Section 17(a) of the Securities Act of 1933 and
Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5. In addition
to the temporary restraining order and asset freeze granted by the court, the
SEC’s complaint seeks permanent injunctions and other monetary
relief. The SEC acknowledges the substantial
assistance of USCIS.

USCIS announces realignment of EB-5
Program

EB-5 stakeholders got some good news out
of USCIS Director Alejandro Mayorkas during a December 3 conference call.
Mayorkas announced that he has decided to realign EB-5 responsibilities by
putting the leadership of the EB-5 Program in USCIS headquarters in
Washington, D.C. The office will be staffed
with lawyers, economists, and immigration service officers (also called
"adjudicators"). The chief of the realigned EB-5 Program in the Washington
office will report
directly to USCIS deputy director. Mayorkas said he hopes to have the
realignment completed within four to six months. This realignment returns the
EB-5 Program to a situation that existed in 2009 before USCIS directors banished
the EB-5 Program to the California Service Center, where confusion has reigned
ever since. Mayorkas said again (as he has for years) that
USCIS's goal is 90 to 120 days' processing time on average for I-526
petitions.

E-2 to EB-5 conversion in
Clearwater

I was asked
to appear on a panel at the Central Florida Chapater of the American Immigration
Lawyers Association concerning a fairly tricky maneuver, i.e., converting an E-2
(treaty investor) visaholder to E-B (alien entrepreneur immigrant visa).
Sometimes one can accomplish that goal; sometimes it can't be done for a variety
of reasons. My panel members and I will delved into the basics
of conversion on Friday, October 5 (my birthday). For more information,
please click on the link to my EB-5 green card blog above.

For the latest information about deferred action
from USCIS, click on the link below

On June 15, 2012, Secretary of
Homeland Security Janet Napolitano announced a new policy with regard to young
people who are illegally present in the United States. Certain young people who were
brought to the United States as young children, do not present a risk to
national security or public safety, and meet several key criteria will be
considered for relief from removal from the country or from entering into
removal proceedings. Those who demonstrate that they meet the criteria will be
eligible to receive deferred action for a period of two years, subject to
renewal, and will be eligible to apply for work authorization. “Our nation’s immigration laws
must be enforced in a firm and sensible manner,” said Secretary Napolitano. “But
they are not designed to be blindly enforced without consideration given to the
individual circumstances of each case. Nor are they designed to remove
productive young people to countries where they may not have lived or even speak
the language. Discretion, which is used in so many other areas, is especially
justified here.” The secretary
said the Department of Homeland Security (DHS) continues to focus its
enforcement resources on the removal of individuals who pose a national security
or public safety risk, including immigrants convicted of crimes, violent
criminals, felons, and repeat immigration law offenders. Today’s action further
enhances the Department’s ability to focus on these priority removals. Under the new DHS directive,
individuals who demonstrate that they meet the following criteria will be
eligible for an exercise of discretion, specifically deferred action, on a case
by case basis:

1. Came to the United States when
younger than 16; 2. Have
continuously resided in the United States for a least five years prior to June
15, 2012, and are present in the United States on June 15, 2012; 3. Are currently in school, have
graduated from high school, have obtained a general education development
certificate, or are honorably discharged veterans of the Coast Guard or Armed
Forces of the United States; 4.
Have not been convicted of a felony offense, a significant misdemeanor offense,
multiple misdemeanor offenses, or otherwise pose a threat to national security
or public safety; 5. Are not
older than 30.

Only those individuals who can
prove through verifiable documentation that they meet these criteria will be
eligible for deferred action. Individuals will not be eligible if they are not
currently in the United States and cannot prove that they have been physically
present in the United States for a period of not less than five years
immediately preceding today’s date. Deferred action requests are decided on a
case-by-case basis. There are no assurances that all such requests will be
granted. DHS said that use of prosecutorial discretion confers no
substantive right, immigration status, or pathway to citizenship. Only Congress,
it said, acting through its legislative authority, can confer these
rights.

EB-5 Program statistics
released

The EB-5 immigrant investor visa
program is still woefully underutilized, if newly released statistics are any
guide. The Office of Performance and Quality of U.S. Citizenship and
Immigration Services shows that 1,563 I-526 petitions (for the conditional
immigrant visa) were approved in federal fiscal year 2011, up from 1,369 in FY
2010. But based upon
preliminary data from the first two quarters of FY 2012, 2,101 I-526 petitions
were approved. That's better, but still nothing for USCIS to crow about
considering Congress makes available 10,000 visas each federal fiscal year. On the backside of the process,
USCIS approved 1,067 I-829 petitions to remove conditions on residence, and
there were 522 approvals during the first two quarters of FY 2012. The approval percentage for I-526
petitions in FY 2011 was 81 percent, and for the first two quarters of FY 2012,
it was 85 percent.

'Tenant occupancy' emerges as the latest big
policy change from USCIS

The February 17 USCIS memo
was less than one page, but it had a 911-style impact on its customers like
nothing else in recent memory. And here it is:

"The 'tenant-occupancy'
methodology seeks credit for job creation by independent tenant businesses that
lease space in buildings developed with EB-5 funding. USCIS continues to
recognize that whether it is economically reasonable to attribute such
“tenant-occupancy” jobs to the underlying EB-5 commercialreal estate project is a fact-specific question. Each case
filed will depend on the specific facts presented and the accompanying economic
analysis. "USCIS is now moving
forward with the adjudication of certain pending I-924 Applications For Regional
Centers Under the Immigrant Investor Pilot Program that are supported by the
'tenant-occupancy' economic methodology. Our newly-hired economists and business
analysts will be bringing expertise to these new adjudications, and requests for
evidence will be issued to certain applicants and petitioners to address any
questions or issues we have about the economic methodologies employed in their
specific cases. Our adjudications will continue to be made on a case-by-case
basis and we do not intend to revisit factual findings. I-526 Immigrant
Petitions by Alien Entrepreneurs and I-829 Petitions by Entrepreneurs to Remove
Conditions will have predictability in connection with early regional center
adjudications."

Oh, brother! USCIS cannot
make the case that they are not bomb-throwers. The EB-5 immigration
lawyers, including my AILA EB-5 Investors Committee, dropped everything and got
in the agency's face. This USCIS policy change was released without any
feedback from its customers, which was an innovation of the current director
initiated, assiduously pursued, and then promptly and unaccountably
abandoned.

When USCIS states that it does not
"intend to revisit factual findings," what does the writer mean? Does this
mean that regional centers that adopted the "tenant occupancy" model will still
be able to claim tenant jobs as direct jobs? Or will USCIS apply this
policy change change retroactively and cause notices of intent to revoke to be
sent to affected regional centers and denial notices sent to alien investors who
file I-829 petitions to remove conditions?

What are we paying for?

It is always great to have a guest
editorial in this space. This month I have invited another colleague,
Brandon Meyer, of San Diego, to offer his opinion concerning the so-called
"exemplar" or "pre-approval" process for EB-5 Program investment projects.
Brandon thinks the $6,230 filing fee paid to USCIS for this "service" is a waste
of money, and I agree. CLICK
HERE.

Federal appeals court will proceed with AL, GA
immigration appeals

Although the U.S. Supreme Court
has agreed to hear arguments for and against Arizona's immigration laws, the
U.S. Court of Appeals for the Eleventh Circuit in Atlanta turned down motions
last month to stay appeal proceedings over Alabama's and Georgia's immigration
laws. Oral arguments concerning Arizona's immigration laws may be heard as
early as late Spring.

Immigration Law Center among 'Best Law
Firms'

The Immigration Law Center has
been included, once again, as one of America's 'best law firms'.
See:

A federal judge has temporarily
blocked Alabama's new immigration law from going into effect on Sept. 1. The brief order of U.S. District
Court Presiding Judge Sharon Blackburn says she is not ruling on the merits of
the motions filed by the parties in court, but will issue an order so ruling no
later than Sept. 28. The
injunction is in effect until Sept. 29 or when the judge rules on the motions,
whichever comes first.

EB-5 visa issuance for FY 2009 and 2010 tell the
sad story

I took a long, hard look at EB-5 visa issuance by the
Department of State for fiscal years 2009 and 2010, the latest available, and
realized why I am so worried about the survival of the EB-5 immigrant investor
visa program. You can take your own look at my report by clicking HERE.

USCIS is 'tougher', certainly not 'permissive'
in handling EB-5 Program

Following is another guest editorial by Young Noh, one of
the best thinkers in the EB-5 arena.

I wish the author had selected a more appropriate title for
his article because many EB-5 practitioners are reporting these days a
tougher, rather than permissive, handling of EB-5 cases by
USCIS. From what we hear, USCIS is definitely not handling EB-5 cases more
permissively. We also would like to point out several
inaccurate statements or assumptions in the article
about the EB-5 Program.

Inaccurate statement 1:

Apparently nothing frustrates USCIS more than an
underutilized visa program, such as the one that allows a
well-to-do-investor's family to get a collection of green cards by - briefly
- investing half a million dollars in the U.S. So, the agency
has announced its efforts to expand that
program. USCIS is not all that frustrated that the EB-5
Program is underutilized. Congress and many companies
which want to attract EB-5 money, as well as regional centers who want to work
with U.S. businesses that will create jobs, are frustrated. In
fact, many would argue that the reason the EB-5
Program is in fact underutilized is due to USCIS policies which often discourage
commercial investments. USCIS is not handling the EB-5
Program loosely and is in fact handling the
EB-5 Program too tightly, creating obstacles that discourage, rather than spur,
investments.

Inaccurate statement 2:

Other nations, such as Canada and Australia have demanded
that the immigrant investor actually operate a company that hires
real people - but not the U.S. The use of a contrived, indirect
job-creation formula is all that is needed. The EB-5 investor need not even
visit the state where the two-year investment is located, much less
actually manage a business; all he has to do is
send a check. Canadian green card investment programs does not
even require any sort of job creation. Anyone
familiar with the investment green card programs of Canada, Australia and USA
should know that the EB-5 Program of USA is one of the most
cumbersome and risky of any investment green card programs. In fact,
if you take out Asian EB-5 investors who are willing to take some
risks due to their desire to send their children to American universities, which
they perceive as "the best in the world," not that many people
in fact go through the EB-5 Program run by USCIS
-- and rightly so. That should tell you something. In our opinion, if the US
offered a similar EB-5 Program to that of Canada, which in fact
guarantees the return of the investment in 5 years
without any need to show any job creation, the number of EB-5 investors would
double or triple immediately.

Inaccurate statement 3:

Looking at this from another angle, let's step back for a
moment and ask what kind of serious venture
capitalist seeks funding in half million dollar chunks, investments that can be
withdrawn after 24 months? My venture
capitalist stepson, with a Harvard MBA piled on top of a PhD in chemical
engineering and a decade of experience in the field, would
laugh at the thought. The author seems to believe that there are
regional centers out there which actually return the EB-5
investment money after 24 months. Perhaps there are regional centers which
wishes they could return the money that quickly, but we can confidently
say that the EB-5 investment structures do not allow EB-5 projects to
return the money that quickly. No regional
center wants one EB-5 investor to invest once every 3 months or 6 months; they
need all EB-5 investors to invest within one year. In fact,
I know several American businesses who are
frustrated by having to wait for I-526 approvals which are taking sometimes more
than 1 year, before they can receive EB-5 moneys. No regional
center returns the investment money after 24
months, and in fact, the way the EB-5 case process is set up, it is very, very
difficult to return the money before 4 or 5 years. In fact,
EB-5 investors' chief worry is that for many regional
center programs, they don't know when, if ever, they will get back their money.
It's very hard to get back the money, and most, if not all, regional
center based projects cannot afford to return the
EB-5 investments before 5 years, precisely because, as the writer implies, many
businesses need to use the money for longer periods. If the
author asks his stepson with a Harvard MBA
whether a venture company would not like to use money for 5 years at a very low
interest rate, I am sure the stepson would say "hell,
yes."

Inaccurate statement 4:

A denial rate of 14 percent in the EB-5 program must mean
that the USCIS staff is seeing a set of
applications that are far below average for the agency. The denials,
incidentally, are for the I-829 petitions, which allow the investor
to withdraw his or her money and receive green cards for the entire
family. This happens a couple of years after the investment is made.
The real reason for the high denial rate for EB-5 cases is
because USCIS has many ways to deny EB-5
cases, because the EB-5 law is very unclear on many key issues. There is a
greater chance of denial for EB-5 petitions than probably any other
type of immigration petitions, that much is true;
but that's because USCIS applies the EB-5 requirements very strictly and
narrowly, rather than loosely or liberally. One must also
keep in mind that actual denial rates of EB-5 cases are
much greater because many petitioners simply choose to withdraw their cases
before denials, and these withdrawals do not count as
denials. Many petitioners, rather than risk the cases
being sent to AAO, simply choose to abandon their cases, and this is because
whenever USCIS denies a case and the case goes to AAO, AAO
has never overturned the denial decision of USCIS -- which is
pretty incredible when you think about it -- but it goes to
show you, that there are many ways to deny EB-5 cases if
USCIS wanted to. Simply put, it is very difficult
to put one over the tough, strict USCIS, and not many regional centers even try,
because their reputation would be shot and they have
something to lose. As a result, EB-5 money does not seem to
be going primarily into promising start-ups or into Silicon
Valley; it is more likely to show up in decaying ski resorts in Vermont (beloved
to Sen. Leahy (D VT), head of the Judiciary Committee), in an
uneconomical sewage treatment plant in the Mojave
desert and in a questionable effort to revive the Watergate Hotel in Washington,
D.C., and in similar ventures.

The writer makes an accurate observation that not many EB-5
investors choose venture projects, but there is a good reason for
this. The EB-5 Program requires 10 full-time jobs, and start-ups or
venture companies simply are unable to accomplish this with any consistency.
Also, USCIS policy makes it almost impossible to spread money
among multiple businesses, including some venture companies.
Classic conservative economic theory is that government
should not pick winners and losers in the
marketplace; I do not necessarily accept that thought, but if a government
agency gets to play that role, I would prefer it would be one
experienced in finance (such as Treasury or Commerce) not
one whose expertise is in immigration. Actually, many
EB-5 practitioners feel that USCIS, an immigration agency, is simply not
equipped to deal with an investment program, and that the
Department of Commerce should play the primary role. In this sense, I
actually agree.

Meanwhile, in a multi-trillion dollar economy, the amount
of money raised (for two years) in the EB-5 program
is peanuts. Let's say that each of the 814 approvals this year will raise half a
million dollars, that's only $407 million - is the game
worth the candle? Yes, it's a simply a drop, but every drop
helps in this economy. More importantly, why is the writer against
EB-5 investors and dependents immigrating to the US, when EB-5 investors and
dependents do not take away jobs from Americans, and
probably all they do are buying expensive
houses and cars, putting their kids in private schools or universities and
spending money in the US? Is that so bad? And during this economy,
many businesses have a hard time finding any
loans from regular banks, and the EB-5 Program offers a loan for 5 years at a
very low rate. What is wrong with that? If the Congress or USCIS
wishes to do away with the EB-5 Program, so be
it. But while the EB-5 Program is on-going, at least run it efficiently and
consistently. Otherwise, shut it down by all means and let
other countries receive EB-5 investors and families with open
arms.

My biggest concern about USCIS mishandling of
the EB-5 Program

Following is a guest editorial
written by Young Noh, the newest member of the EB-5 Investors Committee of the
American Immigration Lawyers Association (AILA). Young is an expert
in removing conditions on residence in the EB-5 Program. I wish the
federal employees who are in charge of mismanaging the EB-5 Program had half his
knowledge and understanding of the EB-5 Program. The name of his
excellent website follows his name at the end of his
editorial.

If someone asked me what is my
single biggest concern (or constructive criticism) of the way USCIS has and is
handling the EB-5 Program, it would be that their policy guidance memos not only
affect prospective EB-5 projects and petitions, but sometimes adversely and
retroactively affect past EB-5 projects and EB-5 petitions. Let me explain
further.

I came to accept the fact that
USCIS can do pretty much anything to the EB-5 Program because it is a
governmental agency in charge of the EB-5 Program. I have no problem with this
in so far as USCIS acts within reason. This sounds like a defeatist attitude but
it's a realistic attitude born of experience and realization that I simply
cannot affect or influence whatever policy USCIS will eventually adopt.

Most regional centers and EB-5
practitioners simply accept the USCIS's many policy guidance memos and try to
operate under the changed landscape, and I am one of them. But what the heck are
you supposed to do with the past EB-5 projects and/or EB-5 petitions, which in
good faith, proceeded under the old EB-5 law full of holes, at the time when the
EB-5 law failed to address many important issues which were never properly
analyzed and decided upon? For example, many new issues concerning job-creating
issues for the purpose of meeting I-829 requirements have arisen during the last
several years. In essence, the EB-5 law is being made up as we go along.

The fundamental fairness dictates
that USCIS should apply its new policy memos prospectively, and treat the past
EB-5 projects and petitions in a fair manner. But sadly, this is not the case.
More often than not, USCIS appears to want to justify that its new positions
taken via so-called policy guidance memos were in fact what the EB-5 law has
been all along. Experienced EB-5 attorneys know that this was not the case.

For example, in the past there was
no concept of "material change" in the EB-5 law when it comes to the
adjudication of I-829 petitions. Katigbak and Izummi cases are simply not
applicable to these cases; they are only relevant when there are changes while
I-526 is pending. In fact, when you review I-829 statutes and regulations, there
is no mention of "material change" concept anywhere. There is only no
de-coupling language in the 9th Circuit Chang case, but that does not mean that
changes to the job-creating project cannot take place, as long as the specific
I-829 requirements are met.

Aside from the fact that USCIS
policy guidance memos are not as clear as they could be and create more new
issues than resolve them, I have absolutely no complaint or problem with USCIS's
creating and applying whatever new policy guidance memos prospectively. I am
willing to follow what USCIS wants us to do, as long as they are applied
prospectively. No one wants to be a hero and fight USCIS when you can avoid
doing so. [Just consider how many times USCIS changes it position on
construction jobs and TEA census tracts issue. Actually, I still do not know
what the official USCIS position and rationale is on the issue of combining
contiguous census tracts! The June 30th 2011 presentation materials state that
USCIS is reviewing this issue.] But USCIS has to be fair in recognizing that in
the past, many of the EB-5 issues and procedures simply did not exist and at
best, were very unclear, so that no one, including USCIS, knew what the USCIS
policy or position was on many important EB-5 issues or areas; and that is the
very reason why USCIS is issuing guidance memos in the first place: To create
and apply new policies to EB-5 issues that have not been properly addressed
before.

All I am asking is that USCIS be
clear in communicating its new EB-5 policies and be fair in applying its new
policies prospective and not retroactively, especially when the new policies
adversely affect the past or pending EB-5 projects or petitions. Is this too
much to ask? All I am asking is that USCIS be fair and honest about the EB-5
history; and recognize that for the EB-5 Program to succeed, regional centers
and USCIS must cooperate rather than be adversaries. -- Young Noh,
eb-5center.com

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